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DYER V. THE STATE (S14A0537)

In this high-profile killing of a 2-month-old baby girl in Cobb County, the Supreme Court of Georgia has unanimously upheld the conviction and life prison sentence Orlando Ricardo Dyer received for the 2008 murder of his infant daughter, Azyani.

On appeal, Dyer argued that the evidence was insufficient to prove his guilt, that certain evidence at trial had been improperly admitted, and that his trial attorney was ineffective. But in today’s opinion, written by Presiding Justice P. Harris Hines, the high court has rejected Dyer’s arguments and found that the evidence “authorized any rational trier of fact to find him guilty beyond a reasonable doubt of the crimes of which the jury did indeed find him guilty.”

According to the facts, Dyer, 22, lived with his wife, Laurievett Calvo-Dyer, in an apartment in Austell with their two children, a 1-year-old boy and 2-month-old Azyani. At about 6:30 a.m. on Nov. 13, 2008, Calvo-Dyer left home for work. It was her second day on a new job after two months of recuperating from Azyani’s birth. It was also the second time she left her husband alone to care for the children.

Dyer had a night job, and he had arrived home hours earlier, at about 12:30 a.m., then stayed up watching television until after 2. At around 3 or 4 a.m., Azyani awoke, and he gave her a bottle. When the mother left for work later that morning, she found her babies sleeping peacefully. Dyer’s brother was asleep in the living room.

At about 11:30 a.m., Cobb County Fire and Emergency Services arrived at Dyer’s apartment complex in response to a call from Dyer’s brother that the baby was unresponsive. He had called for help after he saw blood and foam coming from her mouth. While the emergency responders were driving around looking for Dyer’s apartment, a car driven by Dyer pulled in front of them, forcing them to stop. Dyer got out of the car, reached into the back seat, and pulled out the unresponsive baby girl, who had blood trickling from her nose. Because of a language barrier, Dyer could not tell the responders what had happened. When police arrived, however, Dyer said in broken English that he had called 911 after he noticed Azyani bleeding and choking. Witnesses said he seemed to show no emotion as emergency technicians tried to resuscitate the infant.

As they rushed the baby to the hospital, paramedics were able to get a slight pulse back, but she still was not breathing. Dyer came to the WellStar Cobb Hospital emergency room, where he told a Spanish-speaking nurse that Azyani had been sick the week before and was fussy and restless that morning. However, he said the baby had not fallen or suffered any head injuries. The nurse observed that the father showed “no emotion of what was going on with the baby.” After tests revealed bleeding next to the baby’s brain and two skull fractures, she was transferred to Children’s Healthcare of Atlanta, where she was pronounced dead at 9 that night.

During an interview at his apartment, Dyer told a Cobb County detective that nothing out of the ordinary had happened that morning – that he’d given both his babies baths, then around 11:00 a.m. noticed blood and foam on Azyani’s mouth. He said a plastic box of baby wipes had fallen on her head a week before and that her head at the time had “seemed tender.” Subsequently at the police station, however, Dyer’s story changed. He claimed that while carrying the infant after her bath, he had slipped on a toy ball. He said he fell to his knees and the baby “flew out of his arms,” colliding with a closet and hitting her shoulder and head. He said that shortly after, he noticed blood and foam coming from her mouth.

The Cobb County Medical Examiner concluded that the baby girl died from blunt force trauma to her head and torso, and the injuries were not consistent with an accident. Rather, it appeared that her head had been struck against a flat, hard surface. The bleeding behind Azyani’s eyes was recent and associated with Shaken Baby Syndrome. The medical examiner said the hemorrhages were “due to trauma due to shaking or some action like that, and the striking of the head.” Azyani’s ribs had also been fractured in multiple places. Some of the fractures were recent, while others were two weeks old or older. The Medical Examiner also found hemorrhaging in Azyani’s upper neck, consistent with the baby being held firmly by her neck or shaken.

In January 2011, a jury convicted Dyer of felony murder while in the commission of aggravated battery, felony murder while in the commission of cruelty to children in the first degree, and other crimes. He was sentenced to life in prison. He then appealed to the state Supreme Court, arguing the evidence was insufficient to sustain his convictions.

“Certainly, a conviction based upon circumstantial evidence requires that the proven facts not only be consistent with the hypothesis of guilt, but that they exclude every other reasonable hypothesis save that of the guilt of the accused,” today’s opinion says. “However, whether the evidence does exclude every other reasonable hypothesis is ordinarily a question for the jury, and this finding by the jury will not be disturbed unless the verdict of guilt is unsupportable as a matter of law. And that is plainly not the situation in this case. Reviewing the evidence in a light most favorable to the prosecution, it is sufficient to have allowed the jury to find that the evidence excluded all reasonable hypotheses except that of Dyer’s guilt….”

Dyer’s attorney also argued the medical examiner’s testimony, in which he said he believed the manner of the baby’s death was a “homicide,” was improper because the basis of his opinion involved facts the jury could evaluate for itself and therefore did not need an expert medical opinion. However, the testimony “was not an improper invasion of the province of the jury on the determination of whether the child’s death resulted from an intentional killing or an accident,” the opinion says.

In addition, Dyer contended he was entitled to a new trial because of the medical examiner’s testimony that the baby had healing and recent rib fractures, which Dyer claimed was irrelevant and harmful to his case because he was never charged with causing rib fractures. Finally he claimed he received “ineffective assistance of counsel” from his trial attorney for failing repeatedly to object to “improper testimony involving irrelevant and prejudicial matter.”

“However, as this Court has explained, such objections would not have been sustained, and the failure of counsel to make a meritless objection cannot be evidence of counsel’s ineffective assistance,” today’s opinion says. “Dyer is not entitled to a new trial on the bases urged.”

In a second case involving a man charged with the murder of his baby, the Supreme Court of Georgia has unanimously upheld a lower court’s ruling dismissing the murder charge on the ground that the father was denied his Constitutional right to a speedy trial.

Alfred Alexander was arrested for the murder of his infant son, Elijah, on July 9, 2004. In December 2004, a Catoosa County grand jury indicted him for malice murder, felony murder, and cruelty to children in the first degree. He was tried before a jury in October 2005. According to the State, Alexander held a pillow over Elijah’s face to stop him from crying until the baby stopped breathing. Prosecutors claimed that Alexander’s 5-year-old daughter said Elijah had been crying and she witnessed her father putting a pillow over the baby’s head to make him stop. A detective and child protective services worker who took the girl to foster care after her baby brother’s death said she pointed out the pillow her father had used. It had flowers on it, and she picked it out of several others, according to the State. A fellow inmate from the jail where Alexander was incarcerated testified Alexander had told him he was stressed over life issues and was trying to sleep, but the baby would not stop crying so he put a pillow over his face. The inmate said Alexander told him that his oldest daughter had seen what he had done. A detective testified for the State that Alexander admitted to him he was under a lot of stress at the time and the children never seemed to sleep. The defense called a number of character witnesses who testified on Alexander’s behalf, as well as a medical expert, who testified that a number of different things could have caused Elijah’s death and that the cause of the death was undetermined.

Following the trial, the jury found Alexander not guilty of malice murder but guilty of cruelty to children. The jury failed to reach a verdict on felony murder, and the trial court declared a mistrial for that count. At that point, the State could have insisted that Alexander promptly be retried for felony murder. But it did not. Instead the case fell off the trial calendar for nearly eight years while the murder charge remained pending. Alexander in the meantime had been sentenced to 20 years on the child cruelty conviction, with 15 to be spent in prison and the rest on probation. In June 2009, he was released on parole after serving five years in prison.

Years later, after realizing that Alexander had never been retried for felony murder, the prosecuting attorney asked that it be put back on the trial calendar, which it was in September 2013. Alexander promptly filed a motion asking the court to dismiss the charge, arguing that the delay in retrying him had violated his right to a speedy trial.

Under the U.S. Supreme Court’s 1972 ruling in Barker v. Wingo, when deciding speedy trial claims, the trial court must conduct a two-stage analysis. The first question is whether the case has been delayed long enough to raise a presumption of “prejudice,” or harm to the defendant’s case. If the answer is yes, the trial court must then proceed to analyze and weigh four factors: (1) whether the delay was uncommonly long; (2) who’s more to blame for the delay – the government or the defendant; (3) whether, in due course, the defendant asserted his right to a speedy trial; and (4) whether the defendant suffered harm or prejudice as a result of the delay. Following a hearing, the trial court granted Alexander’s motion to dismiss the felony murder charge. The trial court found that the length of delay was uncommonly long, the reason for the delay was the State’s negligence in failing to ensure a new trial, the factor regarding a defendant’s obligation to assert his right to a speedy trial only weighed slightly against Alexander because he was without representation and had only an eighth grade education, and that based on the length of the delay and the scattering of witnesses, there was a presumption of prejudice. As a result, the trial court ordered the charge of felony murder against Alexander be dismissed.

“In this case, the trial court entered a detailed order, in which it carefully and thoroughly explained its reasons for concluding that Alexander was denied his right to a speedy trial,” Justice Keith Blackwell writes for the Court. “Upon our review of the record, we cannot say that the trial court clearly erred in its assessment of the relevant facts, and we cannot say that its ultimate conclusion amounts to an abuse of discretion. Accordingly, we affirm the judgment of the trial court.”